Citation Nr: 0615938
Decision Date: 06/01/06 Archive Date: 06/13/06
DOCKET NO. 97-13 358A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for bilateral
leg and right hip disabilities.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
D. Hachey, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1953 to March
1955.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an October 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Oakland, California (the RO). During the pendency of the
appeal, jurisdiction of the claim was transferred to the
Waco, Texas RO.
Procedural history
The veteran was initially denied service connection for
bilateral leg and right hip disabilities in an October 1994
rating decision. He did not appeal.
In September 1996, the RO received the veteran's request to
reopen his previously-denied service-connection claim. The
October 1996 rating decision declined to reopen the claim on
the ground that new and material evidence had not been
submitted. The veteran duly perfected an appeal.
The veteran presented testimony before a Veterans Law Judge
at a November 1998 videoconference hearing. A transcript of
this hearing has been associated with the veteran's VA claims
folder. Following this hearing, the claim was remanded for
the purpose of obtaining additional records from the
veteran's service department and the National Personnel
Records Center (NPRC). After the additional development
requested by the Board was accomplished, the RO again
declined to reopen the veteran's previously-denied service-
connection claim in supplemental statements of the case
(SSOCs) dated in March 2000, October 2002, and February 2003.
During the pendency of the appeal, the Veterans Law Judge who
conducted the November 1998 hearing left the Board's
employment. Accordingly, the veteran was provided the
opportunity to have an additional hearing before another
Veterans Law Judge. Such hearing was conducted in March
2003, at which time the veteran presented testimony at a
videoconference hearing with the undersigned Acting Veterans
Law Judge. A transcript of this hearing has been associated
with the veteran's VA claims folder.
Following the March 2003 hearing, the Board again remanded
the claim, this time to ensure compliance with the Veterans
Claims Assistance Act of 2000 (VCAA) and to obtain additional
private medical records identified by the veteran. After the
additional development requested by the Board was
accomplished, the Appeals Management Center (AMC) again
denied the veteran's claim in a January 2006 SSOC. The case
is now once again before the Board.
FINDINGS OF FACT
1. In an unappealed October 1994 rating decision, the RO
denied the veteran's claim of entitlement to service
connection for bilateral leg and right hip disabilities.
2. Evidence submitted since the October 1994 rating decision
does not bear directly and substantially upon the specific
matter under consideration, and is not so significant that it
must be considered in order to fairly decide the merits of
the claim.
CONCLUSION OF LAW
The unappealed October 1994 rating decision is final. Since
this decision, new and material evidence has not been
received, and the claim of entitlement to service connection
for bilateral leg and right hip disabilities is not reopened
and remains denied. 38 U.S.C.A. §§ 5108, 7105 (West 2002);
38 C.F.R. § 3.156 (in effect prior to August 29, 2001); 38
C.F.R. §§ 3.104(a), 20.1103 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is ultimately seeking service connection for
bilateral leg and right hip disabilities. He essentially
maintains that these disabilities had their onset during his
period of active duty.
As was noted in the Introduction, the veteran's initial claim
of entitlement to service connection for bilateral leg and
right hip disabilities was denied in an unappealed October
1994 rating decision. Implicit in the veteran's presentation
is the contention that he has submitted new and material
evidence which is sufficient to reopen his claim.
In the interest of clarity, the Board will review the
applicable law and regulations, briefly describe the factual
background of this case, and then proceed to analyze the
claim and render a decision.
The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the provisions of the
VCAA. The VCAA includes an enhanced duty on the part of VA
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
also redefines the obligations of VA with respect to its
statutory duty to assist claimants in the development of
their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002).
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment but not yet final as of that date. However, the
VCAA appears to have left intact the requirement that a
veteran must first present new and material evidence in order
to reopen a previously and finally denied claim under 38
U.S.C.A. § 5108 before the Board may determine whether the
duty to assist is fulfilled and proceeding to evaluate the
merits of that claim. It is specifically noted that nothing
in the VCAA shall be construed to require VA to reopen a
claim that has been disallowed except when new and material
evidence is presented or secured, as described in 38 U.S.C.A.
§ 5108. See 38 U.S.C.A. § 5103A(f) (West 2002).
Once a claim is reopened, the VCAA provides that VA shall
make reasonable efforts to assist the veteran in obtaining
evidence necessary to substantiate the veteran's claim for a
benefit under a law administered by VA, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103A (West 2002).
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
To comply with the aforementioned VCAA requirements, the RO
must satisfy the following four requirements.
First, the RO must inform the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. §
3.159(b)(1) (2005). The Board observes that the veteran was
notified by the April 1997 statement of the case (SOC) and
numerous SSOCs of the pertinent law and regulations
(including those relating to the reopening of claims based on
the submission of new and material evidence), of the need to
submit additional evidence on his claim, and of the
particular deficiencies in the evidence with respect to his
claim.
More significantly, letters were sent to the veteran in April
2002 and March 2004 which were specifically intended to
address the requirements of the VCAA. The April 2002 letter
from the RO specifically notified the veteran that to support
a claim for service connection, the evidence must show an
"injury in military service or a disease that began in or
was made worse during military service, OR an event in
service causing injury or disease;" a "current physical or
mental disability;" and a "relationship between your
current disability and an injury, disease, or event in
service" (emphasis in original).
Moreover, in compliance with the recent holding of the
United States Court of Appeals for Veterans Claims (the
Court) in Kent v. Nicholson, No. 04-181, slip op. at 10 (U.S.
Vet. App. Mar. 31, 2006), the March 2004 letter informed the
veteran that because he was previously denied service
connection for bilateral leg and right hip disabilities, he
was required to submit new and material evidence. The
veteran was advised that "[n]ew and material evidence must
raise a reasonable possibility, that when considered with all
the evidence of record (both old and new), that the outcome
(conclusion) would change. The evidence can't simply be
redundant (repetitive) or cumulative of that which we had
when we previously decided your claim." Moreover, the
veteran was informed that "[t]o qualify as 'new evidence,'
it must be submitted to VA for the first time," and that
"to qualify as 'material evidence,' the additional
information must relate to an unestablished fact necessary to
substantiate your claim" (emphasis in original). While the
language employed by the March 2004 letter employed language
more closely follows the current regulatory framework
regarding new and material evidence (as opposed to that in
effect prior to August 2001 which is applicable in the
instant case), the March 2004 letter made clear that absent
new and material evidence, the previously-denied service-
connection claim could not be reconsidered. In any event,
the veteran was provided with the proper regulatory
provisions regarding new and material evidence in the April
1997 SOC.
As will be discussed in greater detail below, the veteran was
previously denied service connection primarily because the
medical evidence of record failed to show current leg and hip
disabilities, any indication that these claimed conditions
began in service, or a causal relationship between any
current hip or leg disability and military service. By
informing the veteran of the need to submit evidence of an
"injury in military service or a disease that began in or
was made worse during military service;" a "current
physical or mental disability;" and a "relationship between
your current disability and an injury, disease, or event in
service" the April 2002 VCAA letter specifically advised the
veteran to provide evidence serving to fill the prior gap in
the evidence. See Kent, supra.
Second, the RO must inform the claimant of the information
and evidence VA will seek to provide. See 38 U.S.C.A. § 5103
(West 2002); 38 C.F.R. § 3.159(b)(1) (2005). In the March
2004 VCAA letter, the veteran was informed that VA was
responsible for obtaining "[r]elevant records from any
Federal agency" including "medical records from the
military, from VA hospitals (including private facilities
where VA authorized treatment), or from the Social Security
Administration." He was further advised that VA would make
"reasonable efforts" to obtain "[r]elevant records not
held by a Federal agency" including records from "State or
local governments, private doctors and hospitals, or current
or former employers." This letter also notified the veteran
that VA would assist him "by providing a medical examination
or getting a medical opinion if we decide it's necessary to
make a decision on your claim."
Third, the RO must inform the claimant of the information and
evidence the claimant is expected to provide. See 38
U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2005).
The March 2004 letter notified the veteran that he "must
give us enough information about your records so that we can
request them from the person or agency that has them . . .
[i]t's your responsibility to make sure that we receive all
requested records that aren't in the possession of a Federal
department or agency" (emphasis in original). More
specifically, the April 2002 letter advised the veteran that
if "there are private medical records that would support
your claim, you can complete, sign, and return the enclosed
VA Form 21-4142, Authorization and Consent to Release
Information to [VA], and we will request those records for
you. Use a separate form for each doctor or hospital where
you were treated" (emphasis in original). Alternatively,
the veteran was notified that "[y]ou can get these records
yourself and send them to us" (emphasis in original).
Finally, the RO must request that the claimant provide any
evidence in his possession pertaining to the claim. See 38
U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2005).
The March 2004 letter included notice that "[i]f there is
any other evidence or information that you think will support
your claim, please let us know . . . [i]f you have any
evidence in your possession that pertains to your claim,
please sent it to us." The Board believes that this request
substantially complies with the requirements of 38 C.F.R. §
3.159 (b) in that it informed the veteran that he could
submit or identify evidence other than what was specifically
requested by the RO.
In short, the record indicates that the veteran received
appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio.
Review of the record reveals that the veteran was not
provided notice of the VCAA prior to the initial adjudication
of his claim. The Board is of course aware of the Court's
decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004),
which appears to stand for the proposition that VCAA notice
must be sent prior to adjudication of an issue by the RO. In
this case, the veteran's claim to reopen was initially
adjudicated by the RO in October 1996, several years before
the enactment of the VCAA in November 2000. Furnishing the
veteran with VCAA notice prior to initial adjudication was
clearly an impossibility; VA's General Counsel has held that
the failure to provide VCAA notice prior to initial
adjudication in such circumstances does not constitute error.
See VAOGCPREC 7-2004.
In the instant case, the veteran was provided with VCAA
notice via the April 2002 and March 2004 VCAA letters. His
claim was then readjudicated in the January 2006 SSOC, after
he was provided with the opportunity to submit evidence and
argument in support of his claim and to respond to the VCAA
notice(s). Thus, any VCAA notice deficiency has been
rectified, and there is no prejudice to the veteran in
proceeding to consider his claim on the merits.
Moreover, the Court recently held in Mayfield v. Nicholson,
19 Vet. App. 103 (2005), rev'd on other grounds 444 F.3d 1328
(Fed. Cir. 2006), that timing errors such as this do not have
the natural effect of producing prejudice and, therefore,
prejudice must be specifically pled. In Mayfield, the
timing-of-notice error was found to be sufficiently remedied
and cured by subsequent provision of notice by the RO, such
that the appellant was provided with a meaningful opportunity
to participate effectively in the processing of her claim by
VA. As discussed in the preceding paragraph, the veteran
received such notice and was given the opportunity to
respond. The veteran has pointed to no prejudice resulting
from the timing of the VCAA notice.
Moreover, the veteran engaged the services of a duly
qualified representative, who is presumably familiar with the
VCAA and the evidence needed to reopen the veteran's
previously-denied service-connection claim. Because there is
no indication that there exists any evidence which could be
obtained which would have an effect on the outcome of this
case, no further VCAA notice is necessary. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not
required where there is no reasonable possibility that
additional development will aid the veteran].
One final comment regarding notice is in order. In Dingess
v. Nicholson, 19 Vet. App. 473 (2006), the Court observed
that a claim of entitlement to service connection consists of
five elements: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date. Because a service connection claim is
comprised of five elements, the Court further held that the
notice requirements of section 5103(a) apply generally to all
five elements of that claim. Therefore, upon receipt of an
application for service connection, section 5103(a) and
section 3.159(b) require VA to review the information and
evidence presented with the claim and provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating the elements
of the claim as reasonably contemplated by the application.
This includes notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded.
In this case, element (1), veteran status, is not at issue.
Moreover, elements (4) and (5), degree of disability and
effective date, are rendered moot via the RO's (and the
Board's) decision to not reopen the claim. In other words,
any lack advisement as to those two elements is meaningless,
because a disability rating and effective date are not, and
cannot be, assigned in the absence of a reopened claim and
the grant of service connection. The veteran's claim of
entitlement to service connection was previously denied based
on elements (2) and (3), existence of a disability and its
relationship to service. As explained above, he has received
proper VCAA notice as to his obligations, and those of VA,
with respect to these crucial elements.
Thus, there is no prejudice to the veteran in the Board's
considering this case on its merits. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) [strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran].
Based on this procedural history, the Board finds that the
veteran was notified properly of his statutory rights.
Duty to assist
As alluded to above, under the VCAA, VA's statutory duty to
assist a claimant in the development of a previous finally-
denied claim does not attach until the claim has been
reopened based on the submission of new and material
evidence. Once a claim is reopened, the VCAA provides that
VA shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate a claim for a
benefit under a law administered by VA, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103A (West 2002).
In short, the Board concludes that the provisions of the VCAA
have been complied with to the extent required under the
circumstances presented in this case. The Board hastens to
add, however, that pursuant to its October 2003 remand,
medical records from a host of private physicians were
obtained, including from, inter alia, J.O., M.D; Kaiser
Permanente; H.W., M.D.; and A.G., M.D.
Moreover, the RO has made repeated attempts to secure the
veteran's service medical and personnel records. With the
exception of the veteran's separation physical examination,
these records are not currently on file and have apparently
been destroyed in a July 1973 fire at the NPRC. All of the
RO's efforts to obtain service medical and personnel records
have been unsuccessful. Therefore, it is clear that
additional attempts to obtain these records would be futile
and would only serve to delay resolution of this appeal. See
38 U.S.C. § 5103A(2) [VA is not required to provide
assistance to a claimant if no reasonable possibility exists
that such assistance would aid in substantiating the claim];
see also Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) [VA's
efforts to obtain service department records shall continue
until the records are obtained or unless it is reasonably
certain that such records do not exist or that further
efforts to obtain those records would be futile]. Therefore,
the Board will proceed to evaluate the claim on the evidence
currently of record.
Since VA has been unable to obtain the veteran's service
medical records, it has a heightened duty to explain its
findings and conclusions. O'Hare v. Derwinski, 1 Vet. App.
365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85
(1992). The Board's analysis of the veteran's claim is
undertaken with this duty in mind. The case law does not,
however, lower the legal standard for proving a claim for
service connection but rather increases the Board's
obligation to evaluate and discuss in its decision all of the
evidence that may be favorable to the veteran. See Russo v.
Brown, 9 Vet. App. 46 (1996). Moreover, there is no
presumption, either in favor of the claimant or against VA,
arising from missing records. See Cromer v. Nicholson, 19
Vet. App. 215, 217-18 (2005) [wherein the Court declined to
apply an "adverse presumption" where records have been lost
or destroyed while in government control which would have
required VA to disprove a claimant's allegation of injury or
disease in service in these particular cases].
The Board further notes that, under the law, an examination
is not required in the context of new and material evidence
claims. 38 C.F.R. § 3.159(c)(4)(iii); see also 66 Fed. Reg.
45,620, 45,628 (August 29, 2001).
Finally, the Board notes that general due process concerns
have been satisfied in connection with this appeal. See 38
C.F.R. § 3.103 (2005). The veteran engaged the services of a
representative, was provided with ample opportunity to submit
evidence and argument in support of his claim, and presented
testimony at Board hearings in November 1998 and March 2003.
Accordingly, the Board will move on to a discussion of the
issue on appeal.
Pertinent Law and Regulations
Service connection - in general
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§ 3.303 (2005). Service connection may also be granted for
any disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. See 38 C.F.R. § 3.303(d)
(2005).
The resolution of issues pertinent to a determination of
entitlement to service connection must be considered on the
basis of the places, types, and circumstances of service as
shown by service records, the official history of each
organization in which the veteran served, and all pertinent
medical and lay evidence. Determinations relative to service
connection will be based on review of the entire evidence of
record. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §
3.303(a) (2005); see Wilson v. Derwinski, 2 Vet. App. 16, 19
(1991).
In order to establish service connection for the claimed
disorder, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999). The determination as to
whether these requirements are met is based on an analysis of
all the evidence of record and the evaluation of its
credibility and probative value. See Baldwin v. West, 13
Vet. App. 1, 8 (1999).
Finality/new and material evidence
In general, decisions of the agency of original jurisdiction
(AOJ) that are not appealed in the prescribed time period are
final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 3.104, 20.1103 (2005). Pursuant to 38 U.S.C.A. § 5108, a
finally disallowed claim may be reopened only when new and
material evidence is presented or secured with respect to
that claim.
The Board notes that the definition of material evidence was
revised in August 2001 to require that the newly-submitted
evidence relate to an unestablished fact necessary to
substantiate the claim and present the reasonable possibility
of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630
(Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2005)]. This
change in the law pertains only to claims filed on or after
August 29, 2001. Because the veteran's request to reopen was
initiated in September 1996, prior to the enactment of the
revised regulation, this case will be adjudicated by applying
the law previously in effect, 38 C.F.R. § 3.156(a) (2000),
discussed in the paragraph immediately following.
New and material evidence is defined as evidence not
previously submitted to agency decision makers which bears
directly and substantially upon the specific matter under
consideration; which is neither cumulative nor redundant; and
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a) (2001). In Hodge v. West, 155 F.3d 1356, 1363
(Fed. Cir. 1998), the Federal Circuit noted that new evidence
could be sufficient to reopen a claim if it could contribute
to a more complete picture of the circumstances surrounding
the origin of a veteran's injury or disability, even where it
would not be enough to convince the Board to grant a claim.
There must be new and material evidence as to each and every
aspect of the claim which was lacking at the time of the last
final denial in order to reopen the claim. See Evans v.
Brown, 9 Vet. App. 273 (1996).]
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. See Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
Factual background
As discussed in detail above, before the Board can evaluate
the merits of a previously-denied claim, it must first
determine whether a claimant has submitted new and material
evidence with respect to that claim after the last final
denial. In this case, the last final denial is the
unappealed October 1994 rating decision.
The "old" evidence
At the time of the October 1994 rating decision, the evidence
of record included the veteran's separation physical
examination (evidently the only service record to survive the
1973 NPRC fire) and outpatient treatment records from Kaiser
Permanente, H.W., M.D., and M.Z., D.O.
The veteran's service separation examination was pertinently
negative for complaint or diagnosis of any hip or leg
disability. The veteran's lower extremities, spine, and
musculoskeletal system were specifically characterized as
being within normal limits.
Private treatment records were also pertinently negative for
any complaint or treatment of a hip or leg disability of any
kind. These records primarily chronicled the veteran's
history of treatment for a low back disability from the late
1970s to the mid 1990s, and contain no mention of any hip or
leg pain. While treatment records from Dr. M.Z. noted
episodes of "sciatica" stemming from the veteran's
nonservice-connected low back disability, no distinct leg or
hip disability apart from this condition was noted.
Moreover, none of the private treatment records available in
1994 made any mention of a hip or leg disability in service
or otherwise related any current disability to the veteran's
period of active duty.
The October 1994 rating decision
In October 1994, the RO denied the veteran service connection
for bilateral leg and right hip disabilities. The RO
essentially determined that the veteran did not have a
current leg or hip disability, that there was no indication
that these claimed conditions began in service, and that
there was no causal relationship between any current hip or
leg disability and the veteran's military service.
The veteran was informed of the October 1994 rating decision
by letter from the RO dated October 28, 1994. He did not
appeal. In September 1996, the veteran requested that his
claim be reopened. After the RO denied the claim, this
appeal followed.
The additionally-submitted evidence
The evidence added to the record since the October 1994 Board
decision consists of outpatient treatment records from, inter
alia, J.O., M.D; Kaiser Permanente; H.W., M.D.; and A.G.,
M.D; personal statements from K.D. (another soldier who
apparently served with the veteran) and the veteran's spouse;
the transcript of Board hearings held in November 1998 and
March 2003; and various argument submitted by the veteran and
his representative. This evidence will be analyzed below.
Analysis
In essence, the October 1994 rating decision denied the
veteran's claim because each of the three Hickson elements
(evidence of a current disability, in-service incurrence of
disease or injury, and medical nexus) were lacking.
The unappealed October 1994 Board decision is final. See 38
U.S.C.A. § 7105; 38 C.F.R. § 20.1104. As explained above,
the veteran's claim for service connection for bilateral leg
and right hip disabilities may only be reopened if he submits
new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a) (2000); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.
Cir. 1996). Therefore, the Board's inquiry will be directed
to the question of whether any additionally-submitted (i.e.
after October 1994) evidence bears directly and substantially
upon the specific matter under consideration, namely whether
the veteran has a current leg or hip disability and whether
such is related to his military service.
While the additionally-submitted evidence may be considered
"new" in that it was not of record at the time of the
October 1994 rating decision, it is not "material." The
additionally-submitted medical records, like their pre-
October 1994 counterparts, reflect ongoing treatment for an
array of medical conditions, primarily a nonservice-connected
low back disability. They contain no record of treatment or
diagnosis of current hip or leg disabilities, no mention of
the veteran's military service, and no other statement
relating any purported hip or leg disability to the veteran's
period of active duty. While these records do note sporadic
complaint of right hip and bilateral thigh pain/numbness,
such has been identified by the medical records as a symptom
of the veteran's nonservice-connected low back disability
rather than a distinct hip or leg disability.
In short, the additionally-submitted medical evidence fails
to demonstrate any current right hip or bilateral leg
disability. The medical evidence also does not relate such
claimed disabilities to any incident of the veteran's
service. Because this evidence fails to satisfy any of the
Hickson elements, and is cumulative of the medical evidence
of record at the time of the October 1994 rating decision, it
is not material and is therefore not so significant that it
must be considered in order to fairly decide the merits of
the claims. See generally Cornele v. Brown, 6 Vet. App. 59,
62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994)
[holding that medical evidence which merely documents
continued diagnosis and treatment of disease, without
addressing the crucial matter of medical nexus, does not
constitute new and material evidence].
The remainder of the evidence consists of statements from the
veteran, his spouse, and K.D. to the affect that the veteran
has suffered from hip and leg pain since service. This is
essentially reiterative of similar statements the veteran has
made in the past. As such, these statements are not new.
See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).
Furthermore, such statements cannot be considered new and
material as to the question of medical nexus. While the
veteran, his spouse, and K.D. are free to report their
observation of the veteran's symptoms, they are not competent
to render an opinion as to medical matters, such as whether
the veteran has a current hip and/or leg disability and
whether such is related to his military service. See
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also
38 C.F.R. § 3.159 (a)(1) [competent medical evidence means
evidence provided by a person who is qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions]. These statements
offered by the veteran, his spouse, and K.D. amount to
speculation and are not competent medical evidence. In
Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court
specifically noted that "[l]ay assertions of medical
causation cannot suffice to reopen a claim under 38 U.S.C.
5108."
Thus, the evidence submitted after October 1994 fails to
demonstrate the existence of a hip or leg disability, fails
to establish in-service incurrence or aggravation of a hip or
leg disability, and fails to show a relationship between
military service and any current disability. As explained
above, each of these elements was lacking at the time of the
October 1994 rating decision. The additionally-received
evidence does not address these missing elements, and thus is
not so significant that it must be considered in order to
fairly decide the merits of the claim. See 38 C.F.R. § 3.156
(2000); see also Hodge, supra.
In summary, for reasons and bases expressed above, the Board
finds that the veteran's attempt to reopen his claim of
entitlement to service connection for bilateral leg and right
hip disabilities is unsuccessful. The recently-submitted
evidence not being both new and material, the claim of
service connection for bilateral leg and right hip
disabilities is not reopened and the benefit sought on appeal
remains denied.
Additional comment
As discussed above, there is no duty on the part of VA to
further assist the veteran in the development of his claim in
the absence of a reopened claim. The Board views its
discussion above as sufficient to inform the veteran of the
elements necessary to reopen his claim. See Graves v. Brown,
8 Vet. App. 522, 524 (1996).
ORDER
New and material evidence has not been received which is
sufficient to reopen the previously-denied claim of
entitlement to service connection for bilateral leg and right
hip disabilities. The claim is not reopened and remains
denied.
____________________________________________
John Kitlas
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs